"Get your facts first, and then you can distort them as much as you please." (Mark Twain)

Tuesday, June 28, 2005

Free Legal Advice (And Worth Every Penny) 

One of my areas of practice, and a subject that interests me greatly, is copyright. Although I have yet to write the authoritative blog post on the SCOTUS' decision in MGM v. Grokster (short version: somewhat disappointing, but not the unmitigated disaster some would have you believe), I do spend a fair amount of time and energy thinking about such things.

Which is why I was interested in this post at Pandagon, regarding Nike's blatant ripoff of the cover art from Minor Threat's 1990 punk classic Complete Discography in an ad campaign for skating shoes. Of course, we all know that big multinational corporations need strong copyright protection to avoid being robbed blind by little guys like you and me - just like we all know that heavy things fall faster than light things, or like we know that the WMD are "in the area around Tikrit and Baghdad and east, west, south and north somewhat" - but copyright isn't just for Disney and Microsoft anymore.

Many of the Pandagon comments riff on a common theme, the fatalistic belief that there's nothing "the little guy" can do in a case like this one. One commentor notes that she was able to find an apology on the Nike Web site (I couldn't find it, but then again I didn't really try all that hard), but in general, there is a sense among the writers there that a small independent record label could never beat a huge company with an arsenal of lawyers at its disposal.

Well, buck up, little soldier - I'm here to tell you that there is something the little guy can do. It's cheap, it's easy, it's effective, and it will give you the power you need to stick it to the Man, should the Man ever be in need of a good sticking:

Always register your copyrights!

Registration is not a prerequisite for copyright protection. Ever since the US implemented the copyright regime from the Berne Convention by enacting the 1978 copyright act, copyright protection attaches once some protectable expression is fixed in a tangible medium. However, registration is a prerequisite for actual;ly bringing suit, and - here's the money shot - timely registration (before publication, or very shortly thereafter) is a prerequisite to claiming attorneys' fees.

That's very important, so let me repeat it: Timely registration of copyright is a prerequisite to claiming attorneys' fees.

Damages in copyright cases are often slippery and speculative, and copyright litigation can be very expensive. Defending a copyright that was not timely registered is strictly for the rich and famous. However, attorneys' fees are not speculative - your lawyer will be happy to provide you with a detailed invoice, for your entertainment and edification - and a potential defendant will be much more impressed with your cease-and-desist letter if you can legitimately claim that they're gonna be on the hook for your litigation costs. Also, lawyers will be far more interested in taking your case, maybe even on a contingent fee basis, if they can see that MegaLoCorp will be paying them.

Registering copyrights is cheap and easy. You can do it yourself; there are lots of good general-interest books available to help you. If you do anything creative - writing, photography, music, whatever - either professionally or as a serious amateur, you simply must get in the habit of registering your copyrights.

You'll get my bill. Have a nice day.




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